Once the budget for these sites is approved, and the locations of the future sites are made public, the last hurdle is to apply to the federal government for an exemption from the Criminal Code under the Controlled Drugs and Substance Act (CDSA). This final step, which has been the subject of numerous legal battles in the case of Downtown East Side Vancouver’s Insite, is likely to become even more difficult for future applicants, thanks to Bill C-2, the Respect for Communities Act (An Act to amend the CDSA), which recently passed the Committee Stage (the Committee Report was presented on November 18th, 2014). It is my personal opinion that the intention of Bill C-2 is to ensure the failure of any future application by an SIS for the Criminal Code exemption, and to justify the Minister of Health’s inevitable denial of an exemption renewal for Insite.

Let’s back up a bit. What is an SIS exactly, and why are they illegal under the Criminal Code? What is Bill C-2? How does it prevent the establishment of SISs in the future? Why is this a controversial issue? I will briefly sketch out answers to these questions to provide a much clearer picture on the state of SISs in Canada, and why it looks like Montreal will not be getting any for a very long time.

An SIS is a location where people who use injection drugs can go to inject their drugs while being supervised by a health care professional.

The facility provides clean and sterile equipment, and the health care professionals are there to assist in education about safe practices and to respond to health crises, like overdoses. The facility does not provide drugs, and the health care professionals do not inject the drugs into the clients. The only SIS in North America is called Insite, and it is located in Vancouver. Insite also provides counseling, detox care, and referrals to other services that provide a continuum of care for the many stages of support that its clients need. Insite has been in operation since 2003, when the public health crisis in the Downtown East Side of Vancouver called for immediate action. The facility was set up as a research experiment and was granted a Criminal Code exemption by the Minister of Health. Since Insite has been so successful for that community, and given that its benefit to the public has been proven through, for example, increased and more rapid entry into detoxification programs, other cities including Montreal are increasingly interested in this initiative.

SISs are illegal, but the government can grant an exemption.

What is illegal about an SIS? Allowing people to possess illicit substances defies the prohibition against possession and trafficking of controlled substances (ss. 4 and 5 of the CDSA). However, the Minister of Health can grant an exemption in the interest of the public, or for medical or scientific purposes under s.56 of the same Act.

In 2003, the Liberal government conditionally approved the project and granted an exemption for Insite for scientific purposes. As its exemption period ended, the Conservative government appeared determined to terminate the project, and in 2008, the Minister of Health refused to renew the exemption. Health authorities in British Columbia and elsewhere went head-to-head with the Federal Minister of Health in the PHS case, and ultimately Insite was saved in 2011, when the SCC ordered the Minister to grant an exemption to Insite under s. 56 of the CDSA.

Bill C-2 is a direct response to the Supreme Court of Canada’s decision in the Insite case, Canada (Attorney General) v. PHS Community [PHS], in which the Court overturned the federal minister’s decision not to renew a CDSA exemption for the safe-injection site.

It attempts to impose greater restrictions on the opening of new safe-injection sites while giving the Minister increased powers. No amendments to the bill were made during the Committee stage, prompting a heated debate during the presentation of the Committee Report in the House of Commons. During that debate, Ms. Elizabeth May, presenting eight motions for the amendment of Bill C-2, exclaimed: “Bill C-2 does nothing less than take a decision of the Supreme Court of Canada and treat it with contempt, and in doing so treats Parliament and Canadian citizens with contempt […] this piece of legislation is so contemptuous of due process that it offends Parliament itself.” According to Ms. May, Bill C-2 allows the Conservative government to do indirectly what it cannot do directly by “[setting] out such an onerous series of requirements for any person, organization, or charity considering opening an Insite facility that it makes it a joke to imagine anyone could possibly meet all these requirements.” The full debate is worth a read.

PHS found that the acts of the Minister at the time to be in contravention with Charter rights – the arbitrary refusal of the Minister to renew the exemption posed a risk to the life and liberty of Insite’s clients and staff members. The reasoning thus gave the government a chance to amend the legislation to reduce the risk of arbitrariness, while still promoting the current anti-drug policy of the Conservative government. Indeed, this is precisely what the government is trying to do with Bill C-2, which requires anyone seeking the s.56 exemption to submit extensive and arguably exaggerated documentation, falling under 26 “categories”. These categories include everything from scientific evidence of the medical benefit of the site (s.56.1(3)(a)), to a letter from the head of the local police force outlining his/ her opinion on the site (s.56.1(3)(e)), to the disconcertingly broad s.56.1(3)(z), which requires that the applicant submit “any other information that the Minister considers relevant to the consideration of the application”. As Ms. May noted during the most recent debates on the Bill, meeting these criteria is likely impossible. For a future application, there would only have to be one criterion that is not met to the satisfaction of the Minister, and that would grounds for not even considering the application that supposedly would not be considered arbitrary.

Additionally, the reasoning of the SCC is dependent on the pre-existence of a safe-injection site or other harm reduction facility. Other communities looking to establish an SIS would not already have an established client base or staff whose Charter rights could be violated in the same way they were for Insite. The arguments put forward in PHS are therefore of limited assistance to anyone seeking to open a new SIS.

Conclusion

Despite all of the positive evidence of Insite’s effect on public health, its operations are continually threatened. Much of this has to do with the negative image of drugs and drug-users among members of the public. The Health Minister’s attempt to shut down Insite in 2008 was a politically-motivated decision. SISs are generally seen as supporting bad drug habits, as opposed to life-saving services that address a wide range of health issues including addiction and mental illness. Such a view speaks especially to the Conservative Party home base, and explains the party’s attempt to reform and narrow the exemption in s.56 through Bill C-2, which would, in effect, prevent any other community organization from obtaining a Criminal Code exemption for a supervised injection site. One solution, in my opinion, would be targeting public perception to stop the advance of this Bill. Public attitudes need to change from criminalizing and marginalizing injection drug users, to supporting them in their health care needs. The moral judgment of ‘the drug user’ as ‘bad’ needs to be replaced by an evidence-based, compassionate model of health care that promotes the well-being of all people.

Note: This blog post does not necessarily reflect the attitudes or opinions of the McGill Journal of Law and Health.